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Cities’ effort to avoid county water discharge suit fails

A California court of appeal has declined to dismiss claims by Los Angeles County that water discharges from nearby cities constitute a nuisance. Cnty. of Los Angeles v. Downey, No. B238386, (Cal. Ct. App. 4/30/13) (unpublished). The county alleged that the cities’ sewers, roadways and facilities discharge “toxic soup” into the Los Angeles River, and it enters the county’s flood control system. Alleging that it must spend money to address the contaminants entering its flood control system from the cities, the county sought an injunction to eliminate “discharges of toxic urban runoff.”

The cities of Los Angeles and Downey moved to dismiss, arguing that the county had not alleged conditions that constitute a nuisance. The cities relied in part on a previous case which held that “nuisance liability requires more than a passive or attenuated causal connection to contamination.” The appellate court distinguished the prior case, however, saying that it had involved a defendant that installed subterranean drainage which, without the defendant’s knowledge, caused a third party’s petroleum discharges to reach plaintiff’s property. Because the cities did not “simply pass through the pollution caused by others,” the court held that the county’s case could stand. The cities also failed to persuade the court that the county did not sufficiently plead the injunctive relief it desires and failed to present the claims to the cities before suing as required under California law. It denied the motions to dismiss.